Top FBI lawyer argues against requiring warrant for data that tracks people's location

The Intercept

IF LAW ENFORCEMENT was forced to get a warrant to obtain information about a suspect’s whereabouts from the phone providers, it would be “crippling,” according to James Baker, general counsel at the FBI.

“I don’t know how we would handle that,” said Baker, speaking on a panel at the American Bar Association’s annual conference on national security law in Washington, D.C., on Tuesday. The executive branch would suffer from “a huge amount of uncertainty and confusion while we are doing investigations.”

The debate over protection afforded to location information launched several years ago and is likely to make its way to the Supreme Court regardless of the new administration.

Several decades ago when law enforcement first began approaching the major telecoms for information about suspects, the law operated under a central theory known as the third party doctrine. According to this theory, data voluntarily given to a company can be handed over to law enforcement without a warrant, because users have “no reasonable expectation of privacy” once the companies have the data. Investigators have used this doctrine to obtain information about where people have been, who they’ve been talking to, and what websites they’ve been browsing.

“It’s the position of the U.S. government,” Baker said. “We’re exercising those authorities.”

While those authorities may have seemed simple when cell phones contained little more than contacts and billing information — that’s no longer the case. Phones are now constantly pinging cellphone towers — tracking location “every six minutes,” which provides “robust information about you, as good as if not better than the contents of communications,” argued Magistrate Judge James Orenstein, another member of the panel. Orenstein, who serves in the Eastern District of New York, made waves in February when he ruled against the FBI, which was attempting to compel Apple to decrypt information on a suspect’s phone. [MORE]